Qasimi (Migration)

[2018] AATA 2677

Qasimi (Migration) [2018] AATA 2677 (12 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Laima Qasimi

VISA APPLICANT:  Ms Qandigul Safi

CASE NUMBER:  1718684

DIBP REFERENCE(S):  BCC2016/4073859

MEMBER:John Billings

DATE:12 July 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.232 of Schedule 2 to the Regulations.

Statement made on 12 July 2018 at 11:42am

CATCHWORDS

Migration – Visitor (Class FA) – Subclass 600 (Visitor) – Sponsored Family Stream – Practice and procedure – First decision remitted to the Department – Sponsorship by a well settled Australian relative – Current review – Whether the review and visa applicant are close relatives – Identity documents do not include mother’s details – Consistent with country information – Authentic documents submitted  –. Credible witness – Tribunal satisfied of mother and daughter relationship – Remitted for reconsideration

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359, 360

Migration Regulations 1994 (Cth), r 1.03 Schedule 2 cls 600.211, 600.232

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 July 2017 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant, Ms Qandigul, applied for the visa on 2 December 2016.  At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case Ms Qandigul applied for the visa seeking to satisfy the primary criteria in the Sponsored Family stream.  

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The criteria include cl.600.232, which requires the visa applicant to satisfy the Minister that he or she is sponsored by a settled Australian citizen who is aged at least 18 years and is a relative (which includes child) or other eligible person.

4. The delegate refused to grant the visa on the basis that Ms Qandigul did not meet cl.600.232.  The delegate was not satisfied that the sponsor for the visa - the review applicant, Ms Qasimi – is the child of Ms Qandigul. 

5. Ms Qasimi is a 37 year old Australian citizen.  She applied for review on 21 August 2017. 

6. Ms Qasimi was represented in relation to the review by her registered migration agent.

7. The decision dated 20 July 2017 is not the first decision to refuse to grant the visa.  On 22 December 2016 a delegate refused the visa on the basis that Ms Qandigul did not meet cl.600.211 or cl.600.232.  That is, the delegate was not satisfied that Ms Qandigul genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted; and the delegate was not satisfied about the relationship between Ms Qandigul and Ms Qasimi.

8. Ms Qasimi applied for review of the first decision.  Following a hearing held on 6 April 2017, attended by Ms Qasimi in person, in which hearing Ms Qandigul participated by telephone, the Tribunal (differently constituted) remitted the matter to the Department for reconsideration with the direction that Ms Qandigul meets the criterion in cl.600.211: AAT reference 1701743.  The Tribunal’s decision record does not indicate that the Tribunal had any reservations at all about the claim that Ms Qasimi is the daughter of Ms Qandigul, but the Tribunal did not make a direction that Ms Qandigul meets the criterion in cl.600.232. 

9. Correspondence on the Department’s file dated 19 July 2017 indicates that the Department subsequently made inquiries about the Tribunal’s decision and was given advice by a Tribunal officer to the effect that the Tribunal (that is, the presiding member) intended that the primary decision be affirmed on the cl.600.232 ground: see further below.  

10. In the present review there has been no hearing. In the circumstances the Tribunal considers that it should decide the review in Ms Qasimi’s favour on the basis of the material before it: see s.360(2)(a) of the Act.

11. Ms Qandigul is a 67 year old national of Afghanistan.  The composition and whereabouts of Ms Qandigul’s immediate family, including her husband, and of Ms Qasimi’s family are set out the Tribunal’s decision in case number 1701743.  The express purpose of the visa application was to enable Ms Qandigul to assist Ms Qasimi when she gave birth to her fourth child, who was due last March. 

12. The Department’s file includes a copy of the relevant pages of Ms Qandigul’s Afghani passport and Ms Qasimi’s Australian passport and certificate of Australian citizenship. 

13. The Department’s file indicates that on or about 22 June 2017, within weeks of the matter being remitted by the Tribunal to the Department, there was a discussion between Ms Qasimi and an officer of the Department in which it was noted that her birth certificate included details of her father but not her mother: see further below.  The officer noted that Ms Qasimi therefore needed to provide her parents’ marriage certificate.  On 26 June 2017 Ms Qasimi’s representative sent an email to the Department with two documents.  The first was a statutory declaration by Ms Qasimi dated 21 June 2017 declaring that she does not have a birth certificate and that Ms Qandigul is her mother.  The second was a declaration dated 18 June 2017, with English translation.  In that document Ms Qasimi’s father, “Mr Abdul Satar Safi”, made a declaration to officials in Kabul requesting confirmation of his marriage to Ms Qandigul and their relationship to Ms Qasimi.  The document records that officials confirmed those relationships.  In the email to the Department the representative informed it that he was in the process of having Ms Qasimi’s parents’ marriage certificate certified and translated.  No marriage certificate has been submitted. 

14. On 10 April 2018 the Tribunal issued an invitation to Ms Qasimi under s.359(2) of the Act to provide information or evidence supporting the claimed relationship. On 24 April and 8 May Ms Qasimi submitted various documents. They include a statement that describes the steps taken to try to obtain official documents. There is also a translation of one of the other documents. That is a “relationship certificate” dated 23 April 2018 naming three “confessors” who, on a fair reading of the document, are recorded as having reached adulthood. The confessors in effect made declarations to a court confirming the relationship between Ms Qandigul and Ms Qasimi. When, earlier this month, the Tribunal inquired whether the marriage certificate was also available, Ms Qasimi’s representative said by implication that the relationship certificate was the marriage certificate. The relationship certificate does not appear to be a marriage certificate though it does also refer to Ms Qasimi as the daughter of “Abdul Satar ‘Nadir Safi’”. (In the visa application his name appears as “Sattar Nadir Safi”).

15. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in this case is whether the criterion in cl.600.232 is met. That criterion will be met if Ms Qandigul is sponsored by a settled Australian citizen who is aged at least 18 years and is a relative. In the Regulations the definition of “relative” includes “close relative” and the definition of “close relative” includes “child”: see r.1.03. In the present case it is claimed that Ms Qasimi is a settled Australian citizen who is aged at least 18 years and that she is Ms Qandigul’s child. There is no controversy that Ms Qasimi is a settled Australian citizen who is aged at least 18 years. The issue is whether Ms Qasimi is Ms Qandigul’s child.

17. It appears that most if not all documents relevant to the relationship question have been submitted since the Tribunal made its decision on 20 July 2017 in case number 1701743.  The documents submitted since then include the certification by local officials in Kabul dated in June 2017 and the relationship certificate dated in April 2018.   

18. DFAT Country Information Report for Afghanistan, 18 September 2017, contains important information in relation to official documents in Afghanistan.  Document fraud is a major issue: at [5.27].    Births are not always registered.  Historically, birth certificates were not issued and they remain far from common.  Parents can obtain a taskira (national identify card) for a newborn child by registering the birth with the Ministry of the Interior’s population registration office: at [5.25].  The taskira is the most important form of identification.  A taskira includes the name of the bearer, the bearer’s father and grandfather, the date and place of birth and other matters: at [5.23].

19. Ms Qasimi has not submitted a birth certificate or taskira.  She has made a statutory declaration stating that she does not have a birth certificate.  It would be consistent with the DFAT report for her not to have a birth certificate.  No marriage certificate for Ms Qasimi’s parents has been submitted.  There is a record of the discussion that took place on or about 22 June 2017 between an officer and Ms Qasimi that is contained in email dated that day.  The record is very brief.  It seems to record that there is a birth certificate but that the certificate does not name Ms Qasimi’s mother.  Possibly the reference to a “birth certificate” in the email was intended to be a reference to a taskira.  That would appear consistent with the information in the DFAT report that taskiras name only the bearer’s father and grandfather.  It would also be consistent with submissions made by the representative in email to the Department on 26 June 2017 about the practice of omitting the mother’s name in official documents.  Therefore, if there were any birth certificate, or taskira, that might not take the matter further.  And if there actually is a marriage certificate, and if it is a reliable document, that would show the relationship between Ms Qandigul and her husband but it would not show the relationship between Ms Qandigul and Ms Qasimi, which is the issue. 

20. It has been mentioned that in June 2017 an officer advised the Department that the Tribunal intended to remit the matter for reconsideration of cl.600.211 but also to affirm the primary decision on the cl.600.232 ground.  It seems that may have been a misinterpretation of the presiding member’s position, for it would make sense for the Tribunal to remit or affirm the primary decision but not for it to do both.  A reasonable inference is that – in circumstances where by the time of the Tribunal’s decision little if any documentary evidence had been submitted to substantiate the relationship - the member meant merely to agree that the relationship still had to be satisfactorily established.  Whatever the position, there is no indication in the Tribunal’s decision record that the Tribunal had any reservations about claims that Ms Qandigul is the mother of Ms Qasimi or, for that matter, that Ms Qandigul is married to Ms Qasimi’s father.  On the contrary, the Tribunal made a favourable assessment of Ms Qandigul’s and Ms Qasimi’s credibility.  It is relevant to add that the Tribunal also made favourable observations about the history of international travel by Ms Qandigul and her husband and other family members.  Towards the end of its decision, the Tribunal noted the strong incentive the family in Australia has for Ms Qandigul not to overstay.  The Tribunal considers that similarly there would be strong incentive not to provide false information or bogus documents to the Department. 

21. Document fraud may be a major issue generally but the Tribunal has no reason to doubt the authenticity of the documents that have been submitted in this case.  There have been no credibility concerns.  And the Tribunal has no concern about Ms Qandigul’s husband’s identity despite the various ways his name appears.  On the whole of the evidence, the Tribunal is satisfied that Ms Qasimi is Ms Qandigul’s child and so is satisfied that Ms Qandigul is sponsored by a settled Australian citizen who is aged at least 18 years and is a relative.  The Tribunal therefore finds that the requirements of cl.600.232 are met.

    DECISION

22. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.232 of Schedule 2 to the Regulations.

    John Billings
    Senior Member